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TMI Blog2008 (3) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... rties realized that they were not suitable to each other, their marriage had irretrievably broken down and there was no possibility of saving the marriage. There are no issues from the wedlock. Since 2nd August, 2007, the parties are living separately. Attempts for reconciliation and resettlement of the matrimonial home failed. Resultantly, with an intention to avoid any legal complications and to ensure that they do not litigate any further and to put an end to the matrimonial relationship by mutual consent without making any allegations against each other, the parties applied for dissolution of marriage by a decree of divorce by mutual consent under the provisions of Section 13B of the Act . This petition for divorce by mutual consent was filed on 30th October, 2007. 3. When the matter came up before the learned Principal Judge of the Family Court, vide order dated 30th October, 2007, the petition was rejected. The petitioners, rather than assailing the said order in appeal, filed the present writ petition on the ground that the reasons recorded by the learned Principal Judge Family Court, for rejecting the petition were unconstitutional. The order dated 30th October, 2007 reads ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indu Bigamous Marriages Act, 1945, its constitutionality and other relevant facets, stated that equality before the law is not offended if the classification which the enactment makes is based on reasonable and rationale considerations. While commenting upon the social aspects the Court repelled the contention that Hindu religion essentially made polygamy its integral part. The Court held as under: Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole. A very interesting and instructive case is to be found in the American Reports, viz Davis v. Beason (1889) 133 U.S. 637. In that case it was contended that polygamy was part of the creed of the Mormon Church and any legislation which penalizes polygamy to the extent that it affected Mormons was contrary to the First Amendment of the Constitution which provided that Congress shall not make any law respecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve either party to the marriage an automatic right to divorce. In other words, right to apply or obtain a divorce was ever controlled by the limitations of law and was not so liberally enforceable that a husband could marry and divorce a woman at his whim and fancy. Even in modern times, the Courts took the view that even if both the parties to a Hindu Marriage get converted to a religion other than Hindu, their earlier Hindu marriage can be dissolved only under the provision of that Act. Vilayat Raj v. Sunita AIR 1983 Delhi 351 . 8. Prior to amendment of the Hindu Marriage Act in the year 1976, marriage of the parties could be dissolved only on the grounds stated under Section 13 of the Act and the party claiming divorce had a heavy onus to discharge strictly in relation to the ground alleged for seeking such a relief. However, after the amending Act 68 of 1976, not only various grounds stated in Section 13 were liberalized to some extent but even Section 13B was inserted in the Hindu Marriage Act. This, for the first time, provided the parties to the marriage solemnized before or after the commencement of the 1976 Amendment Act, to seek a relief for dissolution of their marriage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parately. The expression 'living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they 'have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. 9. Of course, divergent views have been expressed by different High Courts and even by different Benches of the same High Courts. Various High Courts have taken view that period of six months for presentation of second motion is a mandatory requirement and the Courts have no jurisdiction to waive or vary such a period. Som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree of divorce. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. The consent must continue to decree nisi and must be valid subsisting consent when the case is heard . 12. The primary contention raised before us is that the condition Nos. (i) and (ii) noticed (supra) are merely directory and can be suitably waived or altered by the Court depending upon the facts and circumstances of the case and compliance of these conditions is not mandatory. The parties may chose to approach the Court and file a petition under Section 13B(1) without living separately for the stated period of one year. 13. The Legislature, while introducing the Amending Act 1976, did take into consideration the following: (i) to liberalise the provisions relating to divorce (ii) to enable expeditious disposal of proceedings under the Act and (iii) to remove certain anomalie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. The language of Section 13B is clear and unambiguous. The Legislature in its wisdom did not introduce any relaxation in Section 13B of the Act. There is nothing in the language of section which can suggest that the provisions of Section 13B are simpliciter procedurally directed and can be moulded by the Court in exercise of its judicial discretion depending on the facts and circumstances of the case. This provision is intended to liberalise the provisions relating to divorce. Being aware of the existing provisions, report of the Law Commission and the need of the society still the Legislature chose not to add any proviso granting relaxation to the conditions imposed under Section 13B(1) and/or 13B(2). It would not be permissible for the Court to read the expression 'living separately for a period of one year or more' as by adding the word 'may' or for such period as the Court in its discretion may consider appropriate. We shall shortly proceed to discuss the purpose of introduction of Section 13B and its object. It is a settled rule of interpretation that Court while interpreting the statutory provisions would not add or subtract the words from the section no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption Capacity of a male Hindu to take in adoption in the same manner the immediately following Section 8 bears the heading Capacity of a female Hindu to take in adoption . When Parliament resolved to provide for and insist upon the obtaining of the consent of the wife or if there are more than one living wife the consent of all of them, unless they or any one of them suffered any of the enumerated infirmities rendering such consent unnecessary, the conscious and positive as well as deliberate omission to provide for a female Hindu seeking or obtaining any such consent from a co or junior widow is a definite pointer to indicate that the legislative intent and determination was not to impose any such clog on the power specifically conferred upon the female Hindu may be for the obvious reason that under the scheme of the Act the Hindu female has been enabled and empowered to adopt not only to herself but also to her husband, and also in tune with the changed and modern concept of equality of women and their capabilities to decide independently statutorily recognised, and the very reason for insisting upon such an authority or consent from the husband or the sapindas under the old Hin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Edition of his Treatise on Hindu Law and Usage said Hindu Law has the oldest pedigree of any known system of jurisprudence, and even now it shows no signs of decrepitude . 17. In Mulla's Hindu Law, the oft-referred treatise on the subject, the text of Manu and Yajnavalkya, it has been quoted and declared that there are three main sources of Hindu Dharma or law i.e. (1) the Sruti, (2) the Smriti and (3) Custom. Hindu Law is also described as that body of law in its entirety which originated from the religious scriptures of various indigenous communities of this century . The law, normally, could be traced into legal and historical sources. Essentials of ancient Hindu Law were varied to bring it in line with the constitutional mandate and need of the society. 18. Referring to Article 44 of the Constitution, a Constitutional Bench of the Supreme Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum 1985 CriLJ 875 had said that a beginning has to be made if the Constitution is to have any meaning . This view was reiterated in the case of Jorden Diengdeh v. S.S. Chopra AIR 1985 SC 935 , where the Court held that the time has come for the intervention of the Legislature in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o way destroy the letters of law. The Legislature in its wisdom and being aware of other existing provisions of the Act, other laws and the opinion of the society, opted for insertion of Section 13B in its present form without any intent to convert divorce from statutory satisfaction to whim of the parties. The period of one year 'living separately' is sine qua non to the filing of the petition under Section 13B and as such, its waiver would be impermissible as per any settled canons of interpretation. The Court gets jurisdiction to entertain and decide the petition only after these ingredients are satisfied. Non-compliance of these provisions may even affect the jurisdiction of the Court as the petition would lie beyond the statutorily specified essentials and, thus, in law, be a defective or an incomplete petition. 21. Some divergent views prevailed whether under Hindu Law, as applied by Courts in India, marriage was a sacrament or both, a sacrament and contract. The Courts expressed the view that it was not merely a sacrament but also a civil contract. This concept was examined in relation to determination of various cases for reliefs flowing from the marriage between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictionary meaning of the expression conjugal . Shorter Oxford English Dictionary, 3rd Edn. Vol. I page 371 notes the meaning of 'conjugal' as of or pertaining to marriage or to husband and wife in their relations to each other . In the Dictionary of English Law, 1959 Edn. At page 453, Earl Jowitt defines 'conjugal rights' thus: The right which husband and wife have to each other's society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognisable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the Court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, Section 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodical payments by the husband to the wife (Section 22). Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R. v. Jackson 1891) 1QB 671. 15. In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity to the parties to harmonise their lives rather than taking steps hastily to destroy the institution of marriage and convert Hindu marriage purely to a contractual relationship. The basic human and social problem is of maladjustment of couples, as marriage could fail not because of wickedness of one party or the other but they just fail. Many couples despite attempts of reconciliation over a reasonable time and despite of trying their best to make their marriages a success, may still fail and take recourse to dissolution of marriage. But every trivial difference may not be a justifiable ground for invoking this provision without permitting the statutory period to lapse. Educated and more civilised persons are expected to have greater respect for the institution of marriage and to their togetherness. In their togetherness, they could always make space for each other's shadow. This maladjustment should discernly be distinguished and understood in law from intransigent incompatibility or irretrievable breakdown of marriage. The principle of breakdown has found recognition in different forms. Somewhere such breakdown may be left to be judged under the discretion of the Court whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torture, there is no compatibility and the parties would be free to ask for the relief of dissolution. Liberal construction, as suggested by the petitioner, in fact, would frustrate the very object of the Act and encourage complete disharmony in the continuance of institution of marriage and may even be without a rationale reason. 24.1. The legislature after considering various facets, in its wisdom, has provided the period of one year when parties would live separately and then alone approach the Court of law for a decree of divorce by mutual consent. The school of thought advocating instant dissolution of marriage on the pretext of social freedom has obviously not found favour with the legislature. There is no justification for the Court to grant such a meaning to the provisions of the section. This stage should not come in a hurried manner by impulsive decisions taken in the heat of the moment. It goes with the principle of canons of common prudent human behaviour that you must think objectively, purposefully and avoid hasty decisions. Human behaviour is not static. It alters with time and situation. Objectivity and rationality should be the foundation of such vital decisions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... world has become a global family, there is tremendous scope for better mutual understanding and sensitive attitude towards human relationship even within family. Ability to act faster in the modernised age necessarily must not result in instant decisions relating to delicate human relationship. It is socially and even legally obligatory for the parties to attempt a serious reconciliation of a failing matrimonial relationship and even the Courts are duty bound to ensure that such an attempt is made. Like commercial commodities and/or services, marriage should not become a commodity as it will prove disastrous to the social fabric and the very institution of marriage under the Hindu Law. Impulsive decisions to be recognized by law without even affording an opportunity to seriously ponder over the marital issues is not what the legislature had mandated in the language of Section 13B of the Act. Instantaneous reaction to a situation may be arising out of the mistake or error on part of either of the spouse and, therefore, to dissolve the marriage between them without even letting a reasonable time to pass, would not be in conformity with the concept of the marriage being a sacrament b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of their collective existence. 26. Whenever law is applied to a social problem, it is bound to have some inconvenience or hardship to some individuals. Such inconvenience or hardship should be examined from the point of view of proportionality of the result and social object sought to be achieved by implementation of the law on its plain reading. In the case of Bharat Petroleum Corporation Ltd. v. Maddula Ratnavalli and Ors. (2007) 6 SCC 81 , the Supreme Court while analysing the scope or power of the Court to interpret law with pragmatic and consistent view held that legislative intent has to be found out and effectuated by giving proper meaning and law is part of social reality and that law could not be interpreted to cause oppression, the Court held as under: 18. We are, however, not oblivious of the legal principle that only cause a statute causes hardship, the same may not be declared ultra vires (dura lex sed lex). We may, in this regard, notice certain principles. 19. In Raghunath Rai Bareja v. Punjab National Bank it is stated SCC 241-42, para 29 29. Learned Counsel for the respondent-Bank submitted that it will be very unfair if the appellant who is a guarantor of the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts always presume that the legislature inserted every part of a statute for a purpose and the legislative intention is that every part of the statute should have effect. In Ganga Prasad Verma (Dr.) v. State of Bihar it has been held that where the language of the Act is clear and explicit, the Court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature. 28. Still in the case of Visitor, AMU and Anr. v. K.S. Misra (2007) 8 SCC 593 , the Court commenting on the process of interpretation held as under: 13...It is well-settled principle of interpretation of the statute that it is incumbent upon the Court to avoid a construction, if reasonably permissible on the language, which will render a part of the statute devoid of any meaning or application. The Courts always presume that the legislature inserted every part thereof for a purpose and the legislative intent is that every part of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive intention. The first and primary rule of construction, said Gajendragadkar, J. is that the intention of the legislature must be found in the words used by the Legislature itself. 31. While interpreting the statute, the objects and reasons of a Bill may not be treated as absolute indicators or a definite guide to the Courts but certainly they are relevant consideration. While interpreting the provision, they do hold the key in knowing the factors leading for change in law as well as object that is sought to be achieved by the legislature. Reference can usefully be made to the object and reasons of an enactment while interpreting its provisions. 32. Freedom of the Court in interpreting a provision also has to be contained within permissible limits for even the Constitution does not give unlimited powers to anyone including the Judges as the law should not be subverted and the Rule of law must prevail. Creativity would not extend in rendering the law ineffective or that the law is not the one enacted by the Legislature. Equally true it is that few examples cannot be taken as a criteria for generalizing a problem of inconvenience. The interpretation of law would depend upon rationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial reason (as none has been stated in the petition), they have decided to dissolve their marriage. The scheme of the Act and the legislative intent is clear that the parties should have time to consider and reconsider their decision before they come to a irreversible decision of dissolving their marriage. The inconvenience of the petitioners that they have to stay separate for few months more is disproportionate to the social good and legislative object of fair chance of survival of marriage. The balance clearly tilts in favour of the legislation rather than it being ultra vires. We have already noticed that Hindu marriage is a sacrament coupled with an element of contract supported by statutory provisions. Thus, it cannot be treated as a contract simpliciter which is capable of being abruptly determined at the whim and fancy of the parties to the marriage. Any approach to the contrary will adversely affect the social fabric and the institution of marriage. The parties to marriage should realise and in fact, the legislative intent require that they be made to realise their obligation towards each other and the family, in terms of law and its social and sacrosanct values. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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